R v Ames - [2011] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v AMES
[2011] SASC 203
Judgment of The Honourable Justice Peek
29 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PROOF AND EVIDENCE - MOTIVE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE
Criminal trial by judge alone - accused charged with murder - accused pleaded not guilty - victim the accused's uncle - circumstantial evidence.
Held: - accused guilty of murder - the evidence taken as a whole is inconsistent with any rational or reasonable hypothesis other than the guilt of the accused.
Azzopardi v The Queen (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232, considered.

R v AMES
[2011] SASC 203
Criminal: Trial by Judge Alone
PEEK J.
Introduction

Daniel Troy Ames is charged with the crime of murder. The particulars of the charge against him are that between the 23^rd day of November and the 26^th day of November at Cavan he murdered his uncle, Allan William Ames. Upon his arraignment the accused pleaded not guilty. The trial proceeded before me as a Judge sitting alone and I reserved judgment following the completion of the final address by Mr Boucaut, Senior Counsel for the accused, on Friday 18 November 2011. My verdict and reasons follow.
Uncontentious facts surrounding the death of the deceased
There are a number of uncontentious facts and items of evidence concerning the circumstances surrounding the death of the deceased which I will summarise. Before doing so, I should mention that the various times to which I will refer have been derived from various sources in the evidence, some of which have had to be corrected to South Australian standard time.[1] I also note that where a witness has given oral evidence of performing an action at an approximate time, and that action is clearly depicted on CCTV footage, I have referred to the most accurate and reliable time source.
[1] The uncorrected times displayed on some exhibits may therefore appear to differ from the corrected times referred to herein but such differences have been taken into account.
I find the following facts to be proven.
The family relationship between the accused and the deceased
Mrs Vera Ames had four sons: Allan Ames (the deceased), Keith, Deane and Douglas. The accused, Daniel Ames, is the son of Douglas Ames and the deceased was the uncle of the accused.
The finding of the body of the deceased
The body of the deceased was found by Mr Paul Martino at about 8.48am on 25 November 2009 at 14 Thomas Street, Cavan which were industrial premises owned by the deceased.
The business premises of “Cross Cranes” which are situated at 13 Thomas Street, on the opposite side of the street to No 14 Thomas Street and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ames

Details

AGLC: R v Ames [2011] SASC 203
Case: [2011] SASC 203
Decision Date: 29 November 2011

CaseChat Overview and Summary

Daniel Troy Ames was charged with the murder of his uncle, Allan William Ames, between 23 November and 26 November 2009. The trial was conducted before a judge alone, and Ames pleaded not guilty. The court considered the circumstantial evidence against Ames and found that it was consistent with his guilt. The evidence was deemed overwhelming and cohesive, ruling out any rational hypothesis of innocence. The judge concluded that the charge was proven beyond reasonable doubt, finding Ames guilty of murder.

The court addressed several legal issues, including the standard of proof required in a criminal case, the admissibility and weight of circumstantial evidence, and the credibility of the accused's statements. The judge found that the evidence taken as a whole was inconsistent with any rational or reasonable hypothesis other than the guilt of the accused. The court also considered the accused's deliberate lies about the duration of his visit to the crime scene and the route he took home, which further supported the conclusion of guilt.

The reasoning of the court was based on the totality of the evidence presented, including the ballistics evidence, the layout of the premises, and the accused's statements and behaviour. The judge found that any hypothesis of innocence required an unlikely combination of events and circumstances, which could be dismissed as fanciful. The circumstantial evidence, when considered together, left no room for reasonable doubt about the accused's guilt.

The final orders of the court were that Daniel Troy Ames was found guilty of the murder of Allan William Ames, as charged in the Information. The court's decision was based on the overwhelming and cohesive nature of the circumstantial evidence, which left no rational hypothesis of innocence. The judge concluded that the evidence taken as a whole was inconsistent with any rational or reasonable hypothesis other than the guilt of the accused, and that the charge was proven beyond reasonable doubt.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Daniel Troy Ames is charged with the crime of murder. The particulars of the charge against him are that between the 23rd day of November and the 26th day of November at Cavan he murdered his uncle, Allan William Ames. Upon his arraignment the accused pleaded not guilty. The trial proceeded before me as a Judge sitting alone and I reserved judgment following the completion of the final address by Mr Boucaut, Senior Counsel for the accused, on Friday 18 November 2011. My verdict and reasons follow.Uncontentious facts surrounding the death of the deceased There are a number of uncontentious facts and items of evidence concerning the circumstances surrounding the death of the deceased which I will summarise. Before doing so, I should mention that the various times to which I will refer have been derived from various sources in the evidence, some of which have had to be corrected to South Australian standard time.[1] I also note that where a witness has given oral evidence of performing an action at an approximate time, and that action is clearly depicted on CCTV footage, I have referred to the most accurate and reliable time source. [1] The uncorrected times displayed on some exhibits may therefore appear to differ from the corrected times referred to herein but such differences have been taken into account. I find the following facts to be proven.The family relationship between the accused and the deceased Mrs Vera Ames had four sons: Allan Ames (the deceased), Keith, Deane and Douglas. The accused, Daniel Ames, is the son of Douglas Ames and the deceased was the uncle of the accused. The finding of the body of the deceased The body of the deceased was found by Mr Paul Martino at about 8.48am on 25 November 2009 at 14 Thomas Street, Cavan which were industrial premises owned by the deceased. The business premises of “Cross Cranes” which are situated at 13 Thomas Street, on the opposite side of the street to No 14 Thomas Street and a little to the west, had a CCTV system (“Cross Cranes CCTV”). At 6.44am on 25November, Mr Ridley, an employee of the business is seen on CCTV leaving the Cross Cranes premises on his way to a job at Mannum. He stated in evidence that, a few minutes before leaving for that destination at that time, he had suggested to Mr Paul Martino, another employee of Cross Cranes, that he might go and check on the deceased. Ridley stated that he had made that suggestion because an interior light (as distinct from an external sensor light to be referred to below) had been on continuously at No 14 from since the previous evening and he had not seen any sign of the deceased moving about. At about 6.50am, Mr Martino is seen on CCTV going to the front gate at No 14. He found it to be unlocked: the padlock had been turned to give it the appearance of being locked but the hasp was not in fact engaged. He called out to the deceased and received no reply. At that stage he proceeded no further. However, he continued to consider the matter and at about 8.47am, he is seen on CCTV again going to No 14. Mr Martino’s evidence was that he entered what has been referred to as the large shed at the rear and there found the body of the deceased.

Evidence

Evidence Before The Court

There was some dust or dirt on the knees of the deceased which could indicate that he was kneeling at the time of the shot and the prosecution did advance that theory. However, although the theory may be consistent with the angle of travel of the projectile through the head (if certain assumptions are made as to the attitude of the head at the relevant time), the theory remains speculative in that the deceased could have been kneeling during the day of 24 November doing any number of things quite disassociated with the circumstances leading up to his death. The ballistics evidence The projectile which caused the death was fired from a .380 Auto pistol cartridge and was consistent with having been fired from the Remington .380 Auto cartridge case discovered near the body. The .380 Auto cartridge is a rimless pistol cartridge compatible with semi- automatic pistols rather than revolvers. There was both an extractor mark and an ejector mark which would indicate that the cartridge case had been fired and ejected from a semi-automatic pistol. However, the projectile had no rifling marks, indicating that it had been fired from a firearm with a smooth bore. This could in turn indicate a barrel that had had its rifling removed or a barrel that was always smooth bore, possibly a home made conversion involving a replica or starting pistol. The cartridge case had a slight bulge which could be due to various causes including a very poorly made pistol with an oversize breech at the point of the bulge or perhaps a home made or converted pistol made out of poor quality metal, in each case the breech allowing the case to expand slightly upon firing, resulting in the bulge. Throughout both the premises at 14 Thomas Street and at the deceased’s home at Priscilla Road a number of firearms were found but it is certain that none were capable of firing the cartridge or projectile that was involved here. Also found in many locations at both premises were various quantities of fired and unfired ammunition of various calibres exceeding 10,000 items in total. The only item of real interest was one only unfired .380 Auto pistol cartridge. This was found in a container with other assorted ammunition which was in turn with a large amount of other ammunition at the premises at 14 Thomas Street during the police search. The fact that it is the same calibre as the murder weapon is interesting but may well be only a coincidence. Although it would clearly have been capable of being fired in the murder weapon, it is to be noted that it was a different brand of ammunition, being Fabrique Nationale (Browning) rather than Remington.The layout of the premises at 14 Thomas Street The layout of the premises at 14 Thomas Street was considered in very close detail at trial by way of oral evidence and was the subject of dozens of photographs received as portions of exhibits. The matter is somewhat complicated by the fact that the premises were sold after the death of the deceased and are now significantly different in their disposition. The premises are depicted in exhibit P2 which is a combination of an aerial photograph and a plan of the office area which had been demolished by the time of the taking of the photograph. A view of the premises was held, which obviously has not been treated as part of the evidence.

Decision

Reasons for decision

PEEK J

I have carefully considered all of the above matters and all of the evidence and submissions by both counsel. I have also considered whether there are other matters that can be put in favour of the accused. I have come to the conclusion that, taken as a whole, the prosecution case is cohesive and overwhelming. Any hypothesis of innocence of the accused requires such an unlikely combination of events and circumstances that it is to be dismissed as fanciful with the result that there is no rational hypothesis or reasonable hypothesis consistent with the innocence of the accused.Conclusion and verdict I conclude and find that the charge is proven beyond reasonable doubt. I find the accused guilty of murder as charged in the Information.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

I have viewed the police interview of the accused. I find that the accused told the police deliberate lies on several topics to which I now refer.The duration of the accused’s visit to 14 Thomas Street, and the time that he left the accused, on 24-25 November 2009 The accused said that his visit with the deceased at 14 Thomas Street occurred on 24-25 November, its duration was “maybe 20 to 25 minutes”[8] and that he was home after leaving 14 Thomas Street by “say quarter to ten I spose”.[9][8] Exhibit P50: Record of interview with Daniel Troy Ames p 26.[9] Exhibit P50: Record of interview with Daniel Troy Ames p 32. I find beyond reasonable doubt that these statements were plain and deliberate lies. They are proven to be false by the accused’s own unqualified admission, eventually made during the course of the trial, that the visit lasted for at least 2¼ hours and that he left 14 Thomas Street at 12.14am on 25 November. I reject any suggestion that this falsity could have been due to mistake or faulty memory having regard to:·the large difference between the inconsistent statements;·the shortness of the ten day period between the occurrence of the event and the recounting of it to police;·the fact that, on his own case, he would have had the circumstances of his visit on the previous night drawn to his attention when he learnt of the murder on 25 November and, if he were innocent, would then have realised that it must have occurred not long after he had left at 12.14am;·the degree of specific detail he gave about the visit; and·his demeanour while giving his answers to the police.The accused returns home by a different route As stated above, the accused was specific and adamant in his interview that he went home from 14 Thomas Street by the same route that he had come. However, I have found above that it is established that he did not return home by the same route he had earlier taken to 14 Thomas Street since his vehicle was not recorded travelling north on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park. Again, I find that the accused told this lie deliberately. My reasons for doing so are very similar to those I have enunciated in relation to his lies as to the very closely related topic of the duration and time of his visit to 14 Thomas Street. Why the accused took a different route, and whether he stopped somewhere en route and for what purpose, cannot be positively established. Although there is no positive evidence, this fact is at least consistent with the proposition that the accused may have disposed of the murder weapon during the drive home from 14 Thomas Street. In this context I note that police found no firearm or ammunition at 30 Malta Drive during their search on 5 December 2009. I consider this to be a neutral fact. If the accused had killed the deceased, he would have appreciated the necessity of divesting himself of such evidence and he had every opportunity to discard the firearm, either en route back home from 14 Thomas Street or at some later time prior to the search.The circumstances under which the accused left the company of the deceased